Spousal support, often referred to as alimony, refers to the money that one spouse may have to pay to the other for their financial support following a divorce or separation. It can be determined based on agreement, although often arises following a contentious process.
This article looks at who might be entitled to spousal support under Canadian law and what happens if the partners were married and divorced overseas. We look at a recent decision of the Ontario Superior Court of Justice in which spousal support was claimed after the parties were married and divorced under the law of a foreign country.
When a married couple divorces, either spouse can ask for spousal support under the Divorce Act.
Entitlement to spousal support is not automatic. It may be granted if payment meets one or more of the main purposes of spousal support set out in the legislation, such as to recognize an economic disadvantage suffered by one spouse during the relationship or relieve economic hardship arising from the breakdown of the relationship.
The situation is complicated if the marriage and divorce occur outside Canada. We highly recommend that you seek the guidance of an experienced family lawyer if this applies to you.
Generally, under the Divorce Act, spousal support is dealt with as a “corollary relief proceeding”. An Ontario court only has jurisdiction to hear and determine such a proceeding if the court has granted a divorce to either of the former spouses. This means that a Canadian divorce is required in order to seek spousal support in Canada under the Divorce Act.
In Abraham v Gallo, the applicant wife applied to an Ontario court for spousal support. The parties were born and married in Egypt, then moved to Canada. They separated in 2016 and the respondent husband told the applicant of his intention to divorce her under Islamic law. The respondent attended the Egyptian Embassy in Ottawa in 2018 to sign documentation required for the divorce declaration and the applicant later did the same. The Registrar General of Ontario recognized the Egyptian divorce and issued the respondent a marriage licence so he could remarry.
In 2019, the applicant commenced litigation in Ontario seeking spousal support. She acknowledged the Egyptian divorce in the application, but in 2020 raised the issue of the invalidity of the divorce. The Ontario court cannot make an order for spousal support unless the divorce was granted by a Canadian court. Therefore, the applicant could not claim spousal support in Ontario unless the Egyptian divorce is not recognized in Ontario.
Under the Divorce Act, there are some rules that recognize foreign divorces, for example, a foreign divorce granted by another country’s authorities is recognized in Canada if either former spouse was ordinarily a resident in that country for at least one year immediately preceding the start of the divorce proceedings.
That didn’t apply in this case because the parties resided in Canada immediately before the divorce proceedings. Therefore, Justice MacLeod had to apply the common law principles to determine if the divorce was to be recognized.
His Honour referred to another case that summarized these principles:
At common law, there are presumptions in favour of the validity of a foreign divorce decree … The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:
1. The Respondent did not receive notice of the Divorce Application;
2. The foreign divorce is contrary to Canadian public policy;
3. The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
4. Where there is evidence of fraud going to the jurisdiction of the granting authority; or
5. There was a denial of natural justice by the granting authority in making the divorce order.
The applicant claimed that the divorce was invalid on a number of grounds. She argued that she was pressured into formalizing the Islamic divorce and threatened to disclose the separation to her family. Justice MacLeod held that this did not constitute duress that invalidates consent. Furthermore, there was no denial of natural justice to the applicant – she was notified of his intention and proceeded to confirm her consent.
His Honour rejected the applicant’s argument that the Egyptian divorce should not be recognized on public policy grounds, based on her lesser spousal support claim under Egyptian law. Applying Supreme Court of Canada case law, his Honour held that although this “may be a perceived injustice in terms of redistribution of finances upon the dissolution of a marriage”, it was not a moral issue that warranted intervention. His Honour agreed with the respondent’s argument that if the Egyptian divorce was not recognized, he would have two current spouses or have his current marriage retroactively invalidated, which would be a legal and moral issue that public policy dictates must be avoided.
Justice MacLeod refused the applicant’s request to not recognize the Egyptian divorce. As a result, the applicant’s claim for spousal support was dismissed.
NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters. We help our clients reach fair and efficient solutions to all of their separation and divorce issues, including spousal support and property division. Contact us online or at 416-481-5604 to book a consultation.